[1989] OLRB Rep. June 587

0120-89-U Council of Printing Industries of Canada on behalf of Empress Graphics Inc., Applicant v. Graphic Communications International Union, Local 500M, Lithographers, Mike R. Zajac, Earl McDonnell and Cliff Robinson, Respondents

BEFORE: R. 0. MacDowell, Alternate Chair.

APPEARANCES: Cohn Morley and Robert Little for the applicant; J. James Nyman and M. R. Zajac for the respondents.

DECISION OF THE BOARD; May 26, 1989

I

1. This is an application under section 92 of the Labour Relations Act alleging that certain employees of the applicant have engaged in an unlawful strike, and that the respondent union and its officials have counselled, encouraged, procured, or supported that strike. It is also alleged that those union officials have engaged in acts which they know (or should have known) would result in an unlawful work stoppage. All of these actions are said to be contrary to sections 72, 74, and 76 of the Labour Relations Act. The pertinent portions of those sections are as follows:

72.-(1) Where a collective agreement is in operation, no employee bound by the agreement shall strike and no employer bound by the agreement shall lcck out such an employee.

(3) No employee shall threaten an unlawful strike and no employer shall threaten an unlawful lock-out of an employee.

74. No trade union or council of trade unions shall call or authorize or threaten to call or autho­rize an unlawful strike and no officer, official or agent of a trade union or council of trade unions shall counsel, procure, support or encourage an unlawful strike or threaten an unlawful strike.

76.-(1) No person shall do any act if he knows or ought to know that, as a probable and reason­able consequence of the act, another person or persons will engage in an unlawful strike or an unlawful lock-out.

(2) Subsection (1) does not apply to any act done in connection with a lawful strike or lawful lock-out.

Also relevant are sections 1(1)(o) and 42 of the Act:

1.-(i) In this Act,

(o) "strike" includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understand­ing, or a slow-down or other concerted activity on the part of employees designed to restrict or limit output;

42. -(1) Every collective agreement shall provide that there will be no strikes or lock-outs so long as the agreement continues to operate.

(2) If a collective agreement does not contain such a provision as is mentioned in subsection (1), it shall be deemed to contain the following provision:

"There shall be no strikes or lock-outs so long as this agreement continues to oper­ate."

II

2. In accordance with the Board's usual practice, the Board directed the abridgement of the time limits for filing pleadings, and put the matter on for hearing quickly. The Board noted the union's concern about such expedition, but denied the union s request for an adjournment so that it could file an application under section 1(4) of the Act asserting that two entities not directly involved in this matter were "one employer" for labour relations purposes.

3. After several short adjournments, the union and employer applicant were prepared to agree, FOR THE PURPOSE OF THIS PROCEEDING ONLY, that the factual submissions appearing in Schedule "B" of the application were true and provable. For convenience, those sub­missions are set out below exactly as they appear in the applicant's pleadings. I recognize that some of them really involve conclusions of law with which the union does not agree, rather than statements of fact with which it is in agreement:

1. The Applicant employer and the Respondent Union are parties to a collective agree­ment which was signed January 9th, 1989 and which provides for a term from January 1, 1988 to December 31, 1989. Respondents Zajac and McDonnell are officers of the Respondent Union. Respondent Robinson is shop steward and an employee of the Applicant employer covered by the said collective agreement. The Applicant employer is a graphics and printing company which, among other things, produces colour separations for the production of retail catalogues, flyers and newspapers inserts.

2. On or about Friday April 7, 1989, the Applicant employer commenced production on 96 pages of material for a Sears catalogue entitled "Fall Values" (the "Sears' job").

3. On the morning of Friday, April 7, 1989, Respondent Robinson informed Mr. Peter Steffen, President and Chief Executive Officer of the Applicant employer, that the members of the Respondent Union would be refusing to work on the Sears' job. Respondent Robinson stated that he was acting on orders from Respondent Zajac.

4. Peter Steffen telephoned Respondent McDonnell at the Respondent Union's office and Respondent McDonnell told him that the Respondent Union was ordering its members to cease performing work on the Sears' job.

5. Respondent Robinson then held a meeting with the members of the Respondent Union and he told them that they were to cease work on the Sears' job. He again stated that he was acting on orders from Respondent Zajac.

6. The members of the Respondent Union ceased to work on the Sears' job, thereby engaging in an unlawful strike in violation of the Ontario Labour Relations Act.

7. The Sears' job was removed from the premises of the Applicant employer and arrangements were made to have it completed elsewhere.

8. On or about Thursday, April 13, 1989, the Applicant employer received another order from Sears Canada. This job called for the production of another 96 pages of material for a Sears Canada catalogue entitled "Fall Catalogue" (the "Fall Cata­logue").

9. In the afternoon of Thursday, April 13, 1989, Respondent Robinson informed Mr. Leo Stapelbroek, Vice President and General Manager of the Applicant employer, that Respondent Zajac had instructed him to tell the Applicant employer that the members of the Respondent Union would refuse to perform any work on the Fall Catalogue.

10. Leo Stapeibroek telephoned Respondent McDonnell at the Respondent Union's office and Respondent McDonnell told him that the Respondent Union was ordering its members to not perform any work on the Fall Catalogue.

11. No member of the Respondent Union performed any work on the Fall Catalogue, thereby engaging in an unlawful strike in violation of the Ontario Labour Relations Act.

12. The Fall Catalogue job was removed from the premises of the Applicant employer and arrangements are being made to have it completed elsewhere.

13. On numerous occasions, the Respondents have threatened the Applicant employer that they will continue to order the members of the Respondent Union to refuse to perform certain types of Sears Canada work as well as work from other major cus­tomers of the Applicant employer.

4. To complete the factual background, it is necessary to make some additional observa­tions.

5. Empress Graphics Inc. has had an amicable relationship with the trade union respon­dent for many years. The existing problem arises only because of a labour dispute between a "sister" local union and another employer known as Photo Engravers and Electrotypers Limited ("Photo Engravers Limited"). That labour dispute was still ongoing at the time of the "work boy­cott" of which the applicant complains, and at the time of the hearing before me. The origin of the work stoppage at Empress Graphics Inc. can be traced, at least in part, to a letter from the Presi­dent of that "sister local" which reads as follows:

February 22, 1989

TO ALL CANADIAN LOCALS

Dear Sister & Brother,

The following is a list of struck work emanating from Photo Engravers & Electrotypers Limited in Toronto, who locked out ninety (90) members of GCIU Local 10-C on Monday, February 20, 1989:

Sears Ltd.- Fall-Winter Catalogue (#209)

• Sears Summer Sale Catalogue
• Sears Winter Sale Catalogue
• Sears Christmas Wish Book

PE. & E. Ltd. also prints catalogues for Consumers Distributing and Radio Shack. Although all of this work may not be classified as struck work, we would appreciate you communicating with this Local before producing any of the work listed above.

Thanking you for your kind co-operation in this regard, I remain,

Fraternally yours,

"Gordon R. Churchill"

Gordon R. Churchill,

President

Essentially this letter calls upon union members, in the name of solidarity, to refuse to work on certain items with which Photo Engravers Limited may have been involved at some stage or would have been involved but for the lockout.

6. The parties are agreed that I may assume, without finding, that the work on the "Sears job" was considered by the applicant's employees to be "struck work", and further that when those employees refused to work on the Sears job the employees were acting in accordance with both the instructions of their trade union representatives and their honest belief as to the effect of Article 34 of their collective agreement. Article 34 reads as follows:

Lithographic employees shall not be required to handle any work and shall not be discharged, disciplined, or discriminated against for refusing to handle any work coming from or to be sent out to any Employer where the members of the Graphic Communications International Union are on strike or where there is a lock-out against the members of the Graphic Communications International Union.

That agreement also contains the usual (and required) clause prohibiting strikes or lockouts during the currency of the collective agreement.

7. From the employer's perspective, there is a real concern that work which it ordinarily does for Sears and Radio Shack will be disrupted because of an outstanding labour dispute involv­ing a local union and employer with which it has no direct relationship. The employer's worry (and perhaps an irony in this case) is that the work in question, if disrupted, will be diverted to non­union enterprises in Canada or the United States, to the obvious detriment of both the employer and its employees. The applicant fears that adherence in the name of "solidarity" to the "struck work" provision mentioned above will result in significant financial loss and a loss of job opportu­nities for the union members it employs. The union does not dispute that possibility. Nor is there any dispute that the work boycott has disrupted the applicant's business.

8. For the purpose of completeness, I should mention that this is not the first proceeding before the Board involving "sympathetic job action" in relation to the Photo Engravers Limited dispute and efforts by the respondent union and its members to support their sister local. In an ear­lier decision the Board declared that a number of employees represented by the respondent union had engaged in an unlawful sympathetic strike, and directed that those employees terminate that unlawful activity. This is therefore, the second proceeding involving allegedly unlawful "spill over effects" from the lawful lockout of members of a sister local. In this case the target is Empress Graphics Inc., but as the Union letter indicates, any other employer could easily be involved despite (as here) a valid and binding collective agreement with the employer in question.

III

9. These are the essential facts. I shall return to their significance below. First it may be useful to refer briefly to the scheme of the Labour Relations Act and the definition of the term "strike" contained therein.

10. The definition of the term "strike" was in issue before the Board some years ago in Domglas Ltd., [1976] OLRB Rep. Oct. 569). In that case a number of employees left their jobs and refused to work because of their disapproval of the federal wage control legislation. There was no immediate dispute with their own employers, but the work stoppage had the effect of interfer­ing with production at local work places. An employer, Domglas, sought a cease and desist direc­tion in much the same way as the applicant does here. At page 573 the Board had this to say:

12. The definition of strike as found in the Labour Relations Act appears broad enough to encompass the kind of work stoppage that is the subject matter of this application. On its face, the statutory definition appears to require only that the work stoppage, or other disruption of work, result from the combined or concerted action of employees. The two essential conditions for conduct to be characterized as a strike, therefore, appear to be: 1) concerted employee activ­ity; 2) some disruption of the employer's operation. The question is whether we should read into this definition a further condition that the conduct be carried out for the purpose of obtaining concessions from the employer, or some other employer.

11. The Board held that in order for an activity to fall within the definition of "strike", there need be no intention to extract concessions from the immediate employer. The definition of strike was broad enough to encompass purely sympathetic action such as that which is involved in this case. (Indeed the definition of lockout expressly contemplates such "sympathetic" employer action). This broad definition of the term strike was approved in a unanimous decision of the Divisional Court reported as Re United Glass & Ceramic Workers of North America et al. (1978), 1978 CanLII 1625 (ON HCJ), 19 O.R. (2d) 353.

12. I should also note the subsequent decision of the Supreme Court of Canada in Re Mari­time Employers Association, 78 CLLC ¶14,171. There, the Court affirmed that a concerted refusal to cross picket lines because of the commonly-held belief in union solidarity was nevertheless a strike. The notion of solidarity which provides the "glue" binding workers to their trade union and its purposes, could also provide the ingredient of "common understanding" necessary to meet the definition of the term "strike" in statutes such as the Labour Relations Act.

13. It is also important to emphasize the extent to which the Ontario statute prohibits any collective job action during the term of the collective agreement. Not only is the definition of the term "strike" a comprehensive one, but section 42 of the Act requires every collective agreement to contain a "no strike" clause. Parties are obliged to include in their contractual arrangements an absolute prohibition on collective action. If they do not, such clause is deemed to be included in the collective agreement.

14. The legislative formula and legal result can be stated quite simply. The collective agree­ment establishes a pact of industrial peace which endures until the agreement expires and the par­ties have completed the process of compulsory conciliation. During the term of the collective agreement there can be no collective job action, whether it be in support of demands by the employees themselves or in sympathy with fellow workers in other establishments. Such job action by employees is a breach of section 72 of the Act. If encouraged by trade union officials, it is a breach of section 74. If induced by "persons", it may be a breach of section 76. In addition, any such job action is necessarily a breach of the "no strike" clause which must be included in all col­lective agreements in Ontario and which imports, as a matter of law, the statutory definition of strike.

15. Against this background, it is difficult to accept the union's submission that a collective employee work refusal, which otherwise looks very much like a strike, and which otherwise would fall within the statutory definition of a strike, is, nevertheless not a strike because of Article 34 of the agreement.

IV

16. Counsel for the respondent union argues, quite ingeniously, that if the collective agree­ment defines circumstances in which employees are not required to work, it cannot be illegal for them to merely follow the terms of their collective agreement. Nor can the employer complain that they are doing so. Counsel notes that Article 34 of the current agreement has formed part of the parties' collective bargaining relationship for many years, and he asks, parenthetically: how can the employer now repudiate that provision and seek, from the Board, an order which virtually nullifies that aspect of the bargain? If the employer has undertaken not to require work in particular cir­cumstances, how can it now seek a direction forcing employees to work in those very circum­stances? Counsel urges the Board to find either that, as a matter of interpretation, this concerted refusal to work does not meet the definition of the term "strike" because no work was properly required in the first place, or, alternatively, that the Board should not relieve the employer of obli­gations or undertakings into which it freely entered.

17. This argument, rooted in appeals to freedom of contract, has its attractions but, in my view, is not consistent with either the structure of the Labour Relations Act or the Board's estab­lished jurisprudence.

18. When boiled down to its essence, the union's argument is that a bargaining party, bol­stered by superior bargaining power, can, by verbal formula, determine what will or will not be a strike - notwithstanding section 42 of the Act and the panoply of provisions prohibiting collective action during the currency of a collective agreement. If the union's submission is accepted, it would be open to construct contractual language providing that no employees shall be required to work if the employer fails to capitulate to the union's position at the third stage of the grievance proce­dure, or if the employer refuses to acknowledge a union's jurisdictional claim, or if an employer discharges an employee for what the union believes is insufficient cause, or if the parent union, or a sister local, or the C.L.C. or the local Labour Council calls for sympathetic concerted job action. All that would be necessary is the verbal formula: "employees will not be required to work if...", which in practical terms, may mean: "employees may strike when ...".

19. In the circumstances of this case I simply cannot accept the union's contentions; for, to do so, would virtually eliminate the legal, practical and policy thrust of the Act. It would accord to the parties the right, based upon their respective bargaining power, to define what is or is not a strike or lockout under the Labour Relations Act and would permit the very collective action for collective bargaining objectives which the statute purports to prohibit. That is not, in my view, an accurate reflection of the legislative intention, nor is it consistent with the Board's views expressed in cases involving similar issues.

20. In King Paving, [1976] OLRB Rep. June 291 and Associated Freezers of Canada Limited, [1972] OLRB Rep. May 445 there was a concerted refusal by employees to cross picket lines set up by another union, and in both cases, the employees pointed to provisions of their col­lective agreement which allowed them to refuse. The Board said - to put the matter colloquially -"you cannot contract out of the Act". The no-strike ban is imposed by statute as a matter of public policy, not the convenience or relative bargaining strength of the parties. It admits of no excep­tions. Any private arrangement which purports to circumvent or avoid the thrust of the Act is void. A concerted refusal to cross a picket line was a strike even though the collective agreement pur­ported to permit it. (See also Hutchison Mechanical Installations Ltd., [1973] OLRB Rep. May 240, Pitts Atlantic Construction v. Construction and General Labourers 1982 CanLII 2858 (NL SC), [1982] 141 D.L.R. (3d) 164, and 1984 CanLII 3084 (NL CA), [1984] 17 D.L.R. (4th) 384 (Nfld. C.A.).)

21. In Piggott Construction Company Ltd., [1969] OLRB Rep. June 399 the Board held that a trade union could not reserve a right to strike in favour of jurisdictional claims. In Belmont Plastering Company Ltd., [19701 OLRB Rep. Mar. 1459 the Board held that a trade union could not reserve a right to terminate the collective agreement early and therefore put itself in a position to strike if an employer failed to remit union dues required by that collective agreement (see also section 52 of the Act). In Dover Corporation (Canada) Ltd., [1972] OLRB Rep. May 435 the Board observed that the fact that there might have been alternative work available for the striking employees was irrelevant. They could not engage in a collective refusal of the tasks to which they had been assigned. Nor, in the exercise of the Board's discretion under section 92 of the Act, does it matter that there may be other remedies available to the aggrieved employer by way of damages or disciplining recalcitrant employees (see Fabricated Steel Products Ltd., [1977] OLRB Rep. June 376).

22. In summary then, a perusal of the Board's jurisprudence in this area significantly dimin­ishes the union's claim to some kind of "reliance interest" on its current contract language. The Board has, for years, routinely rejected efforts by parties to construct or rely upon collective agree­ment language that would permit mid-contract work stoppages.

V

23. In the instant case I am persuaded that the work refusal complained of is properly char­acterized as a sympathetic strike contrary to the Labour Relations Act, and that the named union officials encouraged that strike. Article 34 of the parties' collective agreement does not provide a defence because, even generously interpreted, it purports to permit a strike which the statute clearly prohibits. I do not think that it was open to the parties to negotiate a clause which in form and substance would, for an obvious collective bargaining purpose, negate the no-strike require­ment which they are obliged to include in their collective agreement.

24. It may well be that clauses such as Article 34 would provide a defence to an employer's claim for damages or an employer's attempt to impose discipline on employees who are merely doing what their collective agreement permits them to do. I make no further comment about that. It is a matter which is more properly considered by an arbitrator if the employer seeks to pursue such course of action.

VI

25. Should I exercise my discretion to make a declaration and remedial directions? In my view, I should.

26. The labour dispute involving the sister local is still ongoing. There has already been one Board order concerning unlawful sympathetic action in respect of that dispute. The union letter urging employees to engage in such sympathetic action has not been repudiated. There is a reason­able basis for the employer's concern that, without a Board declaration and direction, there will be a repetition of the illegal job action which has already interfered with its business. Finally, it was drawn to my attention that clauses similar to Article 34 are common in collective agreements between the respondent union and printing establishments throughout Ontario. The issuance of a declaration and a direction may therefore have some educational effect foreclosing future illegal employee action and further proceedings before the Board.

27. For the foregoing reasons, the Board issued the declarations, directions and orders set out in its "bottom line" decision of April 19, 1989.